dissenting.
In the case at hand Dr. Mills, a veterinarian, was adamant throughout that impacted bird feed had caused the birds to die. He had performed the postmortems on the birds and knew whereof he spoke.
On September 9, 1993, which was months before the first complaint was filed by the Capleners on January 31, 1994, Dr. Mills averred by way of affidavit:
After the birds died, I posted them, i. e., cut them open and examined them. They were all impacted with commercial bird feed. They did not have sufficient grass within them to cause a problem. There were no other foreign objects inside them. Their stomachs were swollen with food. They died from food impaction by commercial bird feed.
I advised Don to change bird feed after a few of the ostriches died because I determined that the ostriches ate the food and the food impacted them, which caused their deaths.
On July 15, 1994, Dr. Mills’s deposition was taken, and he testified that impaction killed the birds but that he did not know what caused the impaction.
Motions for summary judgment were filed by the appellees on August 15, 1994, and two days later on August 17, 1994, Dr. Mills averred again by way of affidavit:
After reviewing my deposition, I discovered that my answers left it unclear as to my belief regarding cause of death of Don Caplener’s ostriches.
It is my belief that the primary cause of death of these birds was feed impaction resulting from indigestible feed. I believe a virus or bacteria contracted by any of these birds would have been a secondary infection that resulted from the feed impaction. I did not observe anything to indicate that these birds were suffering from shock or stress. On posting, these birds appeared generally healthy and I did not observe any other abnormalities.
For these reasons, I believe that there was something wrong with the commercial feed that prevented it from digesting properly. As I testified, I did not test the feed and could not say in what way the feed was defective.
On August 25, 1994, and August 26, 1994, the respective appellees moved to strike Dr. Mills’s second affidavit. The trial court’s letter opinion of September 6, 1994, struck the second affidavit and granted the appellees’ motions for summary judgment.
The majority decision affirms the striking of the second Mills affidavit on the basis that it contradicts Dr. Mills’s deposition. But there was a reason for the second affidavit. Dr. Mills is a veterinarian, not a chemist or toxicologist. He did not test the feed or know precisely how it was defective and why it impacted. Thus, he stated at deposition that he could not testify at trial what exactly was wrong with the feed. But he never wavered from his opinion that feed impaction caused the birds to die.
A reasonable explanation for a statement made in deposition seems perfectly permissible to me, and I would not decide this case by striking the second Mills affidavit. Moreover, there is still the first Mills affidavit where he unmistakably opined that the birds died of feed impaction and where he states that he advised the Capleners to change bird feed.
Admittedly, why the commercial feed impacted remains an open question. The affidavits supporting the appellees’ motions for summary judgment discounted aflatoxin as a cause, as the majority opinion points out, but in appellants’ second amended complaint allegations of adulterated feed go beyond the assertions related to aflatoxin. The appellants should have the right to further develop their case.
I would reverse the order of summary judgment and remand.
Glaze, J., joins.